The judge presiding over a voting machine company's defamation lawsuit against Fox News for airing bogus allegations of fraud in the 2020 presidential election indicated Tuesday he would allow jurors to hear some testimony about threats directed at the company, but only to a point.
Delaware Superior Court Judge Eric Davis granted a motion by Fox to prohibit any reference to specific threats or harassment directed at Dominion Voting Systems. But he said he would allow Dominion to talk generally about threats it had received to show how it has been damaged by the Fox broadcasts.
Megan Meier, an attorney for Dominion, argued unsuccessfully that jurors should be allowed to hear details about threats the company has received.
“It has decimated Dominion’s ability to attract and retain employees, because the company is under siege,” she said.
Meier noted that local election officials throughout the U.S. who are responsible for deciding whether to contract with Dominion also have been harassed and threatened, part of a pattern of attacks against election workers since the 2020 election.
Davis said he did not want the jury to be prejudiced against Fox because of threats made by people with no connection to the network.
In another ruling, the judge denied a motion by Dominion to broadly prohibit Fox from using “unfettered and vague references” to the First Amendment and free speech in defending itself against the defamation claims. Dominion, which is seeking $1.6 billion in damages, argued that any reference to the constitutional right to free speech needs to be set in the context of the legal standard for defamation.
The judge acknowledged that not all speech is protected under the First Amendment and said the issue would have to be addressed on a witness-by-witness basis.
The motions were among several presented by both sides in an effort to keep certain evidence, topics and questions out of the trial, which is scheduled to begin Thursday with jury selection. Opening statements are scheduled for Monday.
In another ruling, the judge denied a motion by Fox seeking to bar any reference at trial to matters involving the Murdoch family, which owns Fox Corp., the parent company of Fox News. But Davis said he doesn’t see how testimony from James Murdoch, whom Dominion has pointed to as a potential witness, is relevant to the case because he was not at the company in the months after the election.
James Murdoch is the younger son of media mogul and Fox Corp. chairman Rupert Murdoch, and the brother of Fox Corp. CEO Lachlan Murdoch, both of whom are expected to testify. James Murdoch is a former CEO of 21st Century Fox and former director of News Corp., another large media company with ties to the Murdoch family.
The judge already decided last week there would be no testimony about the Jan. 6, 2021, attack on the U.S. Capitol.
Even before the trial begins, records released as part of the lawsuit have turned an uncomfortable spotlight on the network.
Information obtained by Dominion has shown that some network hosts harbored off-camera doubts about election fraud claims but nevertheless allowed program guests to repeatedly make them in the aftermath of the 2020 election. The case also has drawn scrutiny of various emails and text messages shared among Rupert Murdoch, Lachlan Murdoch and Fox News CEO Suzanne Scott about election coverage and the allegations by former President Donald Trump that he was cheated.
They revealed a chorus of voices, from Rupert Murdoch and top network hosts to producers and publicists, who internally cast the election-stealing conspiracy claims as crazy even as the network repeatedly gave them a platform. Internal communications also showed that at the time, major players at Fox were deeply worried about retaining pro-Trump viewers.
Federal and state election officials, exhaustive reviews in battleground states and Trump’s own attorney general found no widespread fraud that could have changed the outcome of the 2020 election. Nor did they uncover any credible evidence that the vote was tainted. Trump’s allegations of fraud also were roundly rejected by dozens of courts, including by judges he had appointed.
Davis himself wrote last month that it was “CRYSTAL clear” the stolen-election claims weren't true. That came in a summary judgment ruling in which the judge said a jury would have to decide whether Fox News acted with actual malice in publishing the statements. Jurors also must decide whether Fox Corp. directly participated in airing the statements, and whether Dominion is entitled to any damages.
During Tuesday's hearing, the judge said his use of all capital letters in last month's ruling was simply to ensure that lawyers for both sides understood there would be no genuine issue of fact at trial that the allegations were false.
"I wasn't trying to send some message to America or anything,” he said.
